Citation Nr: 0414835
Decision Date: 06/09/04 Archive Date: 06/23/04
DOCKET NO. 02-22 206 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to a disability evaluation in excess of 10
percent for a lumbosacral strain.
2. Entitlement to a disability evaluation in excess of 20
percent for retropatellar syndrome with instability of the
left knee.
3. Entitlement to a disability evaluation in excess of 20
percent for retropatellar syndrome with instability of the
right knee.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Strommen, Counsel
INTRODUCTION
The veteran separated from service in November 1988 following
twenty years, one month, and eighteen days of active duty.
This appeal comes before the Board of Veterans' Appeals
(Board) from a January 2002 rating decision issued by the
Department of Veterans Affairs (VA), Regional Office (RO), in
Atlanta, Georgia, in which the RO denied the veteran's claims
for increased ratings for his lumbosacral strain and
retropatellar syndrome of the right and left knees.
In October 2003, the veteran testified before the undersigned
at a hearing at the RO. A transcript of that hearing has
been associated with the claims folder.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The Veterans' Claims Assistance Act of 2000 (VCAA) provides
that the duty to assist includes obtaining relevant records
(including private records) that the claimant adequately
identifies to the Secretary and authorizes the Secretary to
obtain, and that whenever the Secretary, after making such
reasonable efforts, is unable to obtain all of the relevant
records sought, the Secretary shall notify the claimant that
the Secretary is unable to obtain records with respect to the
claim. 38 U.S.C. § 5103A(b)(1), (2) (West 2002).
Review the record reveals that the veteran has identified
pertinent treatment records that are not part of the claims
folder. At the hearing before the Board in October 2003, the
veteran indicated that he was currently being treated for
both knee disabilities and his low back disability by Dr.
Emory J. Alexander, 1900 10th Avenue, Columbus, Georgia,
31906 from April 2000 to the present, and by Dr. Gregory
Rucker, 700 Center Street, Columbus, Georgia, 31906, from
November 2000 to the present. He also testified that he had
received treatment for his back and knees at the VA medical
facility in Columbus, Georgia, since January 2000, and the VA
medical facility in Montgomery, Alabama, since May 2002. At
the hearing the veteran provided authorization forms so that
VA could obtain the private treatment records.
The RO should make an attempt to obtain the pertinent
treatment records that the veteran has identified. VCAA
provides that the duty to assist includes obtaining relevant
records (including private records) that the claimant
adequately identifies to the Secretary and authorizes the
Secretary to obtain, and that whenever the Secretary, after
making such reasonable efforts, is unable to obtain all of
the relevant records sought, the Secretary shall notify the
claimant that the Secretary is unable to obtain records with
respect to the claim. 38 U.S.C. § 5103A(b)(1), (2).
Review of the record reveals that the veteran was afforded a
VA examination of his back and knees in August 2000. At the
hearing, the veteran stated that his disabilities had
worsened since that time. The examiner who conducted the
August 2000 examination of the veteran's knees noted that she
did not review the claims file prior to conducting the
examination.
VCAA specifically provides that the duty to assist includes
providing a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on the claim. VCAA. 38 U.S.C.
§ 5103A(b)(1), (2) (West 2002). A current examination of the
veteran's knee and back disabilities, based upon review of
the claims file, is necessary to make a decision on the
veteran's claims.
The Board also notes that while this appeal was pending, the
applicable rating criteria for lumbar spine disabilities were
amended effective September 23, 2002. See 67 Fed. Reg.
54345-54349 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a
(2003)). The criteria were again amended effective September
26, 2003. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003) (to
be codified at 38 C.F.R. § 4.71a). Another VA examination is
needed because the VA examination report of record is
inadequate for rating the lumbosacral strain under the
revised rating criteria.
Accordingly, this case is remanded for the following action:
1. The RO should obtain treatment
records pertaining to the veteran's knee
and back disabilities from Dr. Emory J.
Alexander, 1900 10th Avenue, Columbus,
Georgia, 31906, dated from April 2000 to
the present and Dr. Gregory Rucker, 700
Center Street, Columbus, Georgia, 31906,
dated from November 2000 to the present.
The RO should request all records of the
veteran's treatment for low back and knee
disabilities from the VA medical
facilities in Columbus, Georgia, dated
from January 2000 to the present and in
Montgomery, Alabama, from May 2002 to the
present.
The RO should attempt to secure these
records, and any pertinent records
obtained should be associated with the
claims file. All attempts to procure
records should be documented in the file.
If the RO cannot obtain records
identified by the veteran, a written
notation to that effect should be placed
in the file. The veteran must be
notified of unsuccessful efforts in this
regard.
2. Upon completion of the above actions,
the RO should schedule the veteran for VA
orthopedic examinations to determine the
nature and severity of the lumbosacral
strain and the left and right knee
retropatellofemoral pain syndrome with
instability. The RO should inform the
veteran of the consequences of failing to
report for the scheduled examinations.
The veteran's VA claims folder must be
made available to the examiner for review
in connection with the examination, and
the examiner should note such review in
the examination report or in an addendum
to the report.
Regarding the low back disability, the
examiner should specify the range of
motion in degrees of the thoracolumbar
spine including forward flexion,
extension, left and right lateral
flexion, and left and right rotation.
The examiner should indicate whether
there are objective findings of muscle
spasm on extreme forward bending;
unilateral loss of lateral spine motion
in standing position; listing of whole
spine to opposite side; positive
Goldwaithe's sign; marked limitation of
forwarding bending in standing position;
loss of lateral motion with
osteoarthritic changes; narrowing or
irregularity of joint space, or some of
the above with abnormal mobility on
forced motion.
The examiner should report whether the
low back disability causes muscle spasm
or guarding severe enough to result in an
abnormal gait or abnormal spine contour
such as scoliosis, reversed lordosis, or
abnormal kyphosis.
The examiner should indicate if there are
any associated objective neurological
abnormalities due to low back disability.
Regarding the left and right knee
disabilities, the examiner should report
the range of motion of the knees in
degrees. The examiner should indicate
whether the veteran has degenerative
joint disease of the knees substantiated
by X-ray findings. The examiner should
express an opinion as to whether the
veteran has instability of the knees, and
if so, whether such instability or
subluxation is slight, moderate, or
severe.
Regarding both the low back and the knee
disabilities, when reporting the range of
motion, the examiner should report the
degree of motion at which pain is first
exhibited, and determine whether the low
back and left and right knees are
manifested by weakened movement, excess
fatigability, or incoordination. Such
inquiry should not be limited to muscles
or nerves. These determinations should,
if feasible, be expressed in terms of the
degree of additional range-of-motion loss
due to any weakened movement, excess
fatigability, or incoordination. The
examiner should provide a rationale for
all conclusions reached.
3. Then the RO should readjudicate the
issues of entitlement to original
disability evaluations in excess of 10
percent for lumbosacral strain, and
entitlement to original disability
evaluations in excess of 20 percent for
left and right knee retropatellofemoral
pain syndrome with instability. If all
the desired benefits are not granted, a
supplemental statement of the case should
be furnished to the veteran and his
representative. The case should then be
returned to the Board if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
C. L. KRASINSKI
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2000), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2000).